A Difference of Opinion: Send comments and questions to TheLegalEthicist@aol.com

by S. Goodsayer

Q. I have a new and important tax client. He is asking me to take positions that are risky and that would prompt scrutiny from the IRS if reviewed. To my mind, his positions violate the intent of the Code, if not the actual language. I want to retain the client and I don’t want to constantly argue with him. How might I handle this situation that achieves both of our goals?

A. Your inquiry raises two issues. The first is how to weigh the demands of your client against your own independent judgment. The second is how to communicate with your client about these difficult decisions.

The fact of the inquiry demonstrates your understanding that your role is not to blindly follow your client’s requests; it is to provide independent, reasoned guidance, based on the law and common sense, to the client. To do the client’s bidding without question is an abdication of your responsibility to society.

Your judgment is not infallible, particularly in times of stress. You should create regular opportunities to discuss these issues with other attorneys whom you believe to have high ethical standards and good substantive knowledge. This is to ensure that your desire to please the client does not trump your obligation to provide independent judgment. You will benefit from support in the difficult task of forming opinions that your client may not like.

It is imperative that you develop effective communication with your client about these difficult issues. You should begin a regular dialogue, which should take place outside the office. You should seek to understand the client’s mission, values and goals and the human being who represents the client. You should insist that he understand your values and goals, including your obligation of independence. You should discuss how best to communicate with each other when you differ on substantive issues. You should talk about relevant experiences with other clients to suggest a model for the relationship. You should do this without charge as a necessary prerequisite for effective client service, just as you would not charge the client for drafting a fee agreement. These conversations are an essential part of the psychological contract between attorney and client. Only with this depth of understanding can you begin to have the more difficult conversations about specific strategies.

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